Exhibit 10.1
Execution Copy
DEPOSIT ACCOUNT CONTROL
AGREEMENT
This Deposit Account Control
Agreement (this “Agreement”) dated as of November 1,
2006, is made by and among HSBC Automotive Trust (USA) 2006-3, as
issuer (the “Issuer”), The Bank of New York Trust
Company, N.A., not in its individual capacity but solely as
indenture trustee (the “Indenture Trustee”) under the
Indenture referred to below, and HSBC Bank USA, National
Association, as administrator and as bank (“HSBC” and,
in its capacity as Administrator, the “Administrator”,
and in its capacity as bank, the “Bank”).
Capitalized terms used but not defined herein shall have the
meaning assigned (including by reference therein) in the Indenture
dated as of November 1, 2006 (the “Indenture”) among
the Issuer, HSBC, as administrator, and the Indenture
Trustee. All references herein to the “UCC” shall
mean the Uniform Commercial Code as in effect in the State of New
York.
Section
1.
Establishment of Deposit Accounts . The Bank hereby
confirms and agrees that:
(a)
The Bank has established account numbers 10-879781 (the
“Collection Account”) and 10-879782 (the “Reserve
Account”) in the name “HSBC Bank USA, National
Association, as Administrator on behalf of The Bank of New York
Trust Company, N.A., as Indenture Trustee, in trust for the
registered holders of HSBC Automotive Trust (USA) 2006-3
Notes” (such accounts and any successor accounts thereof, the
“Deposit Accounts”) designated as the “Collection
Account” and the “Reserve Account”, respectively,
pursuant to the Indenture. Except as provided in Section 12
hereof, the Bank shall not change the name, account number or
designation of the Deposit Accounts without the prior written
consent of the Indenture Trustee and without prior written notice
to the Servicer, which notice shall state the proposed effective
date of any such change;
(b)
The Bank is an organization engaged in the business of banking and
is acting in such capacity in maintaining the Deposit Accounts and
acting as Bank hereunder;
(c)
Each Deposit Account has been established and will be maintained as
a “deposit account”(as defined in Section 9-102(29) of
the UCC) and is not evidenced by an “instrument” (as
defined in Section 9-102(47) of the UCC);
(d)
The Indenture Trustee is the Bank’s sole
“customer” (within the meaning of Section 9-104 of the
UCC) with respect to the Deposit Accounts;
(e)
All cash and money delivered to the Bank pursuant to the Indenture
will be promptly credited to the Deposit Accounts in accordance
with the terms of the Basic Documents; and
(f) The
Bank’s “jurisdiction” (within the meaning of
Section 9-304 of the UCC) is the State of New York.
Section
2.
Indenture Trustee’s Directions . Notwithstanding
anything to the contrary and for the avoidance of doubt, if at any
time the Bank shall receive any instructions originated by the
Indenture Trustee directing the disposition of funds in the Deposit
Accounts, the Bank shall comply with such instructions without
further consent by the Issuer or any other Person. The
parties hereto acknowledge that the Administrator may give
instructions to the
Bank directing
the disposition of funds in the Deposit Accounts pursuant to the
Indenture. In the event of a conflict between the
instructions originated by the Indenture Trustee and the
instructions originated by the Administrator directing the
disposition of funds in the Deposit Accounts, the instructions of
the Indenture Trustee shall prevail.
Section
3.
Subordination of Liens; Waiver of Set-Off
. In the
event that the Bank has or subsequently obtains by agreement, by
operation of law or otherwise, a security interest or other rights
in the Deposit Accounts or any monies credited thereto, the Bank
hereby agrees that such security interest shall be subordinate to
the security interest of the Indenture Trustee. The monies
deposited in the Deposit Accounts will not be subject to deduction,
set-off, banker’s lien, or any other right in favor of any
Person other than the Indenture Trustee (except that the Bank may
set off (i) all amounts due to the Bank in respect of customary
fees and expenses for the routine maintenance and operation of the
Deposit Accounts and (ii) the face amount of any checks which have
been credited to the Deposit Accounts but are subsequently returned
unpaid because of uncollected or insufficient funds).
Section
4.
Governing Law . Both this Agreement
and the Deposit Accounts shall be governed by the laws of the State
of New York applicable to agreements made and to be performed
therein. Regardless of any provision in any other agreement,
for purposes of the UCC, the State of New York shall be deemed to
be the Bank’s jurisdiction (in accordance with Section
9-304(b) of the UCC), and the Deposit Accounts shall be governed by
the laws of the State of New York.
Section
5.
Conflict with Other Agreements; Amendments
.
(a)
In the event of any conflict between this Agreement (or any portion
thereof) and any other agreement now existing or hereafter entered
into regarding the Deposit Accounts, the terms of this Agreement
shall prevail.
(b)
No amendment or modification of this Agreement or waiver of any
right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto. This
Agreement may not be amended without satisfaction of the Rating
Agency Condition.
(c)
The Bank, strictly in such capacity, hereby confirms and agrees
that it has not entered into, and until the termination of this
Agreement will not enter into, any agreement with the Issuer, the
Indenture Trustee or any other Person purporting to limit or
condition the obligation of the Bank to
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